ICC crimes

The International Criminal Court (ICC) tries individuals for genocide, crimes against humanity and war crimes.

But what do these terms mean?

Genocide

Genocide, as defined in Article 6 of the Rome Statute, means any of the following acts committed with intent to destroy, in whole or in part*, a national, ethnical, racial or religious group, as such:

Killing member of the group;

Causing serious bodily or mental harm to members of the group;

Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

Imposing measures intended to prevent births within the group;

Forcibly transferring children of the group to another group;

The crime of genocide is comprised in two subjective elements:

A general subjective element that must cover any genocidal act provided in article 6 a) to e).

Dolus specialis or mens rea – a specific intent to destroy a particular group in whole or in part.

*in part – the part targeted must be significant enough to have an impact on the group as a whole. The area of the perpetrator’s activity is to be considered; numbers are not evaluated in absolute terms, but in relation to the overall size of the entire group.

≠ Persecution
Both genocide and persecution are crimes perpetrated against people that belong to a certain group. But while in the case of persecution the discriminatory intent can take numerous forms, in the case of genocide that intent must be accompanied with the specific intent to destroy.

Persecution can escalate to genocide in the form of willful and deliberate attacks to destroy a group. It always has to be charged connected with other acts of the list.

Crimes against humanity

Article 7 of the Rome Statute defines crimes against humanity as follows:

Some contextual elements, or the chapeau, have to be fulfilled cumulatively:

Attack directed against civilian population - the term ‘civilian population’ refers to persons who are civilians, as opposed to members of armed forces and other legitimate combatants – it excludes military targets.

Widespread or systematic - Widespread has been explained by the jurisprudence as being an attack carried out over a large geographical area or an attack in a small geographical area but directed against a large number of people. The term systematic has been understood as an organised plan that follows a regular pattern and results in a continuous commission of acts.

Pursuant to or in furtherance of a state or organizational policy - An attack that is planned and organized, as opposed to spontaneous and isolated acts of violence. It does not need to be declared or stated expressly and precisely.

Knowledge (mens rea) – the perpetrator must act with knowledge of the attack directed against the civilian population. Mental element under Article 30 – awareness that a circumstance exists or that a consequence will occur in the ordinary course of events.

≠ War Crime
A War Crime has to be committed during an armed conflict. Conducts which satisfy the objective elements of a War Crime under Article 8 may also satisfy the objective elements of article 7. Thus, the suspects may be tried under Article 7 and under Article 8 simultaneously (the prosecutor may cumulatively charge).

War crimes

War crimes, as defined in Article 8 of the Rome Statute, include grave breaches of the Geneva Convention and other serious violations of the laws and customs applicable in international armed conflicts and non-international armed conflicts, when they are committed as part of a plan or policy or on a large scale. The Court has jurisdiction over these crimes where they are a part of a large-scale commission of such crimes.

War crimes include, among others:

Murder

Mutilation

Taking of hostages

Intentionally conducting attacks against civilians

Rape, sexual abuse and forced pregnancy

Conscripting or enlisting children under the age of 15 into armed forces or using them to participate in hostile activities.

For the purpose of prosecuting war crimes, it is important to differentiate between international armed-conflicts (violence between states) and non-international armed conflicts (violence between armed groups). This is relevant to determine which provision in Article 8 will be applied - n2 b) or n2 c) or e). The list on the last ones is much shorter.

Crime of aggression

The crime of aggression is defined in article 8 bis of the Rome Statute. In 2010, the first-ever Review Conference of the Rome Statute held in Kampala, Uganda, adopted by consensus amendments to the Statute, which include a definition of the crime of aggression and a regime establishing how the Court will exercise jurisdiction to investigate and prosecute individuals for this crime.

The crime of aggression means the planning, preparation, initiation or execution of an act of using armed force by a State against the sovereignty, territorial integrity or political independence of another state.

It includes, among other things, invasion, military occupation, and annexation by the use of force, blockade by the ports or coasts, if it is considered being, by its character, gravity and scale, a manifest violation of the Charter of the United Nations.

Who are the perpetrators?

This crime applies only to political or military leaders, not combatants or soldiers: the perpetrator has to be a person who is in a position to effectively exercise control over or to direct the political or military action of a state.

The Court also has to prove that the perpetrator was involved in the planning, preparation, initiation or execution of the state’s act of aggression.

The article also contains the threshold requirement that the act of aggression must constitute a manifest violation of the Charter of the United Nations.

This crime has a unique jurisdictional regime, which cannot be triggered in the same manner as with other crimes of the Statute. The Court may exercise jurisdiction over the crime either by state referral (proprio motu) or by UN Security Council referral.

For the Court to start actively exercising jurisdiction over the crime of aggression, two conditions have to be verified:

The amendments must have entered into force in at least thirty state parties

State parties must activate the jurisdiction through an additional decision to take place 1 January 2017, by a majority of 2/3